61987J0076

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TAX PROVISIONS - INTERNAL TAXATION - SYSTEM OF DIFFERENTIAL TAXATION ON CARS - TAXATION ACCORDING TO THE POWER-RATING FOR TAX PURPOSES - DETERMINATION OF THE POWER-RATING FOR TAX PURPOSES AND PROGRESSIVE SYSTEM UNFAVOURABLE TO IMPORTED VEHICLES - PROHIBITION - DISCRIMINATORY OR PROTECTIVE EFFECT

( EEC TREATY, ART . 95 )

A SYSTEM OF ROAD TAX IN WHICH ONE TAX BAND COMPRISES MORE POWER-RATINGS FOR TAX PURPOSES THAN THE OTHERS, WITH THE RESULT THAT THE NORMAL PROGRESSION OF THE TAX IS RESTRICTED IN SUCH A WAY AS TO AFFORD AN ADVANTAGE TO TOP-OF-THE-RANGE CARS OF DOMESTIC MANUFACTURE, AND IN WHICH THE POWER-RATING

FOR TAX PURPOSES IS CALCULATED IN A MANNER WHICH PLACES VEHICLES IMPORTED FROM OTHER MEMBER STATES AT A DISADVANTAGE HAS A DISCRIMINATORY OR PROTECTIVE EFFECT WITHIN THE MEANING OF ARTICLE 95 OF THE TREATY .

IN JOINED CASES 76, 86 TO 89 AND 149/87,

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DE GRANDE INSTANCE ( REGIONAL COURT ), SAINT-BRIEUC FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

G . SEGUELA, RESIDING IN SAINT-BRIEUC

AND

ADMINISTRATION DES IMPOTS, IN THE PERSON OF THE DIRECTEUR DES SERVICES FISCAUX ( CHIEF TAX INSPECTOR ) FOR THE DEPARTEMENT OF COTES-DU-NORD, SAINT-BRIEUC ( CASE 76/87 ),

AND BY THE TRIBUNAL DE GRANDE INSTANCE, NANCY, FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

A . LACHKAR, RESIDING IN NANCY ( CASE 86/87 ),

J . BAYON, RESIDING IN NANCY ( CASE 87/87 ),

J.-M . BAYON, RESIDING IN VANDOEUVRE ( CASE 88/87 ),

P . DELLESTABLE, RESIDING IN NANCY ( CASE 89/87 ),

F . SARGOS, RESIDING IN VILLERS-LES-NANCY ( CASE 149/87 ),

AND

ADMINISTRATION DES IMPOTS, IN THE PERSON OF THE DIRECTEUR DES SERVICES FISCAUX FOR THE DEPARTEMENT OF MEURTHE-ET-MOSELLE, NANCY,

ON THE INTERPRETATION OF ARTICLE 95 OF THE EEC TREATY,

THE COURT ( FIRST CHAMBER )

COMPOSED OF : G . BOSCO, PRESIDENT OF CHAMBER, R . JOLIET AND F . SCHOCKWEILER, JUDGES,

ADVOCATE GENERAL : J . MISCHO

REGISTRAR : B . PASTOR, ADMINISTRATOR

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF

THE PLAINTIFF IN THE MAIN PROCEEDINGS IN CASE 76/87, IN THE WRITTEN PROCEDURE BY THE PLAINTIFF IN THE MAIN PROCEEDINGS HIMSELF,

THE PLAINTIFF IN THE MAIN PROCEEDINGS IN CASE 86/87, IN THE WRITTEN PROCEDURE BY BERRODIER AND GOTTLICH, AVOCATS, AND IN THE ORAL PROCEDURE BY MR GOTTLICH, AVOCAT,

THE PLAINTIFF IN THE MAIN PROCEEDINGS IN CASE 89/87, IN THE WRITTEN PROCEDURE BY J.L . TASSIGNY, AVOCAT,

THE PLAINTIFF IN THE MAIN PROCEEDINGS IN CASE 149/87, IN THE WRITTEN PROCEDURE BY E . BAUMANN, AVOCAT,

THE FRENCH GOVERNMENT, IN CASE 76/87 BY R . DE GOUTTES, ACTING AS AGENT, IN THE WRITTEN PROCEDURE, AND IN JOINED CASES 86 TO 89/87 AND 149/87 BY E . BELLIARD, ACTING AS AGENT, IN THE WRITTEN PROCEDURE,

THE UNITED KINGDOM, IN CASES 76/87, 86 TO 89/87 AND 149/87, BY H.R.L . PURSE, TREASURY SOLICITORY, ACTING AS AGENT, IN THE WRITTEN PROCEDURE,

THE COMMISSION OF THE EUROPEAN COMMUNITIES, IN CASES 76/87, 86 TO 89/87 AND 149/87, BY J.F . BUHL, ACTING AS AGENT,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 19 APRIL 1988,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON THE SAME DAY,

GIVES THE FOLLOWING

JUDGMENT

BY JUDGMENTS OF 9 DECEMBER 1986, 5 MARCH 1987, 12 MARCH 1987 AND 7 MAY 1987, WHICH WERE RECEIVED AT THE COURT ON 16 MARCH 1987, 23 MARCH 1987 AND 13 MAY 1987, THE TRIBUNAUX DE GRANDE INSTANCE ( REGIONAL COURTS ), SAINT-BRIEUC AND NANCY, REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS RELATING TO THE INTERPRETATION OF ARTICLE 95 OF THAT TREATY .

THE QUESTIONS WERE RAISED IN THE COURSE OF PROCEEDINGS BROUGHT BY G . SEGUELA, A . LACHKAR, J . BAYON, J.-M . BAYON, P . DELLESTABLE AND F . SARGOS, HEREINAFTER REFERRED TO AS THE PLAINTIFFS IN THE MAIN PROCEEDINGS, AGAINST THE ADMINISTRATION DES IMPOTS ( TAX ADMINISTRATION ) CONCERNING THE PAYMENT OF TAXES ON MOTOR VEHICLES WHICH, IN THE OPINION OF THE PLAINTIFFS, HAD BEEN UNLAWFULLY LEVIED .

THE PLAINTIFFS IN THE MAIN PROCEEDINGS ARE OWNERS OF CARS MANUFACTURED IN GERMANY AND THE UNITED KINGDOM WITH A POWER-RATING FOR TAX PURPOSES OF MORE THAN 16 CV . FOR VARIOUS TAX PERIODS BETWEEN 1980 AND 1985 THEY PAID THE SPECIAL FIXED TAX WHICH, UNDER ARTICLE 1007 OF THE CODE GENERAL DES IMPOTS ( GENERAL TAX CODE ), WAS APPLICABLE AT THAT TIME TO THOSE CARS .

THE PLAINTIFFS IN THE MAIN PROCEEDINGS CONSIDERED THAT THE SPECIAL FIXED TAX WAS CONTRARY TO ARTICLE 95 OF THE TREATY BECAUSE IT PENALIZED THE PURCHASE OF CARS OF FOREIGN MANUFACTURE, WHICH ARE THE ONLY CARS RATED FOR TAX PURPOSES AT MORE THAN 16 CV . THEY APPLIED TO THE ADMINISTRATION DES IMPOTS FOR REPAYMENT OF THE DIFFERENCE BETWEEN THE AMOUNT OF THE SPECIAL FIXED TAX PAID AND THE HIGHEST AMOUNT OF THE DIFFERENTIAL TAX APPLICABLE TO CARS OF FRENCH MANUFACTURE, IN RESPECT OF EACH FINANCIAL YEAR INVOLVED .

ON 9 MAY 1985, WHILE THOSE CLAIMS WERE PENDING, THE COURT DELIVERED A JUDGMENT IN WHICH IT DECLARED THAT A TAX WITH THE CHARACTERISTICS OF THE FRENCH SPECIAL FIXED TAX WAS CONTRARY TO ARTICLE 95 OF THE TREATY ( CASE 112/84 HUMBLOT V DIRECTEUR DES SERVICES FISCAUX (( 1985 )) ECR 1367 ).

IN ORDER TO COMPLY WITH THAT JUDGMENT THE FRENCH LEGISLATURE ADOPTED ARTICLE 18 OF LAW NO 85/695 OF 11 JULY 1985 CONTAINING VARIOUS PROVISIONS OF AN ECONOMIC AND FINANCIAL NATURE ( JOURNAL OFFICIEL DE LA REPUBLIQUE FRANCAISE OF 12 JULY 1985, P . 7855 ). THAT PROVISION ABOLISHED THE SPECIAL FIXED TAX AND REPLACED IT BY A DIFFERENTIAL TAX . IT WAS FURTHER PROVIDED THAT TAXPAYERS COULD OBTAIN A REBATE OF THE DIFFERENCE BETWEEN THE AMOUNT OF THE FORMER SPECIAL FIXED TAX AND THE AMOUNT OF THE NEW DIFFERENTIAL TAX CORRESPONDING TO THE POWER-RATING FOR TAX PURPOSES OF THEIR CAR .

ON THE BASIS OF THAT PROVISION, THE ADMINISTRATION DES IMPOTS UPHELD IN PART THE CLAIMS OF THE PLAINTIFFS IN THE MAIN PROCEEDINGS . IT THEREFORE GRANTED THEM THE REBATE PROVIDED FOR BY THE ABOVEMENTIONED PROVISION IN RESPECT OF EACH FINANCIAL YEAR CONCERNED BUT REJECTED THE REMAINDER OF THEIR CLAIMS .

THE PLAINTIFFS IN THE MAIN PROCEEDINGS TOOK THE VIEW THAT THE NEW LEGISLATION WAS ALSO CONTRARY TO ARTICLE 95 OF THE TREATY BECAUSE FOREIGN CARS CONTINUED TO BE TAXED MORE HEAVILY THAN COMPARABLE FRENCH CARS . IN THEIR VIEW, INSTEAD OF REPAYING THE DIFFERENCE BETWEEN THE AMOUNT OF THE FORMER SPECIAL FIXED TAX AND THAT OF THE NEW DIFFERENTIAL TAX CORRESPONDING TO THE POWER-RATING FOR TAX PURPOSES OF THEIR CARS, THE ADMINISTRATION DES IMPOTS SHOULD HAVE REPAID THE DIFFERENCE BETWEEN THE AMOUNT OF THE FORMER SPECIAL FIXED TAX AND THAT OF THE HIGHEST DIFFERENTIAL TAX APPLICABLE TO CARS OF FRENCH MANUFACTURE . THEY THEREFORE BROUGHT PROCEEDINGS AGAINST THE ADMINISTRATION DES IMPOTS FOR REPAYMENT OF THAT SUM, TAKING INTO ACCOUNT THE PARTIAL REBATE WHICH HAD ALREADY BEEN GRANTED .

THE TRIBUNAUX DE GRANDE INSTANCE BEFORE WHICH THE CASES WERE BROUGHT WERE UNCERTAIN WHETHER ARTICLE 18 OF THE LAW OF 11 JULY 1985 WAS COMPATIBLE WITH ARTICLE 95 OF THE TREATY AND THEREFORE DECIDED TO REFER QUESTIONS TO THE COURT FOR A PRELIMINARY RULING ON THE POINT .

THE QUESTION REFERRED BY THE TRIBUNAL DE GRANDE INSTANCE, SAINT-BRIEUC, IS AS FOLLOWS :

"DOES ARTICLE 95 OF THE TREATY OF ROME FORBID THE IMPOSITION, ON PRIVATE CARS WHOSE POWER-RATING FOR TAX PURPOSES EXCEEDS THE MAXIMUM RATING OF SUCH VEHICLES PRESENTLY MANUFACTURED IN FRANCE, OF A DIFFERENTIAL TAX THE AMOUNT WHICH IS DISPROPORTIONATELY HIGHER ABOVE 16 CV THAN BELOW?"

THE QUESTION REFERRED BY THE TRIBUNAL DE GRANDE INSTANCE, NANCY, IS WORDED AS FOLLOWS :

"DOES ARTICLE 95 OF THE EEC TREATY, ON A TRUE CONSTRUCTION, IN CONJUNCTION, IF NECESSARY, WITH ANY OTHER PROVISION OR FUNDAMENTAL PRINCIPLE OF THE TREATY, PREVENT MEMBER STATES FROM IMPOSING ON MOTOR VEHICLES WHICH EXCEED A CERTAIN POWER-RATING FOR TAX PURPOSES A DIFFERENTIAL TAX WHICH INCREASES PROGRESSIVELY ACCORDING TO THAT RATING WHERE THAT CRITERION ITSELF IS DETERMINED BY A FORMULA WHICH HAS THE EFFECT OF SUBJECTING TO SUCH PROGRESSIVE INCREASE ANY VEHICLE OF A GIVEN CYLINDER CAPACITY WHICH IS NOT MANUFACTURED IN FRANCE AND IS IMPORTED, IN PARTICULAR FROM OTHER MEMBER STATES?"

AFTER THE DELIVERY OF THE JUDGMENTS OF THE NATIONAL COURTS GIVING RISE TO THESE JOINED CASES THE COURT GAVE A RULING, IN A JUDGMENT OF 17 SEPTEMBER 1987 ( CASE 433/85 FELDAIN V DIRECTEUR DES SERVICES FISCAUX (( 1987 )) ECR 3521 ), ON A SIMILAR QUESTION RAISED IN PROCEEDINGS RELATING TO THE APPLICATION OF THE SAME NATIONAL LEGISLATION .

EXAMINATION OF THIS CASE HAS NOT REVEALED ANY FEATURE WHICH WAS NOT PRESENT IN CASE 433/85 . IN THOSE CIRCUMSTANCES IT IS SUFFICIENT TO REFER TO THE GROUNDS OF THE JUDGMENT OF 17 SEPTEMBER 1987 . ( SEE (( 1987 )) ECR 3521 ).

THE ANSWER TO THE QUESTIONS SUBMITTED BY THE TRIBUNAL DE GRANDE INSTANCE, SAINT-BRIEUC, AND THE TRIBUNAL DE GRANDE INSTANCE, NANCY, MUST THEREFORE BE THE SAME AS THE COURT GAVE IN THE ABOVEMENTIONED JUDGMENT OF 17 SEPTEMBER 1987, NAMELY THAT A SYSTEM OF ROAD TAX IN WHICH ONE TAX BAND COMPRISES MORE POWER-RATINGS FOR TAX PURPOSES THAN THE OTHERS, WITH THE RESULT THAT THE NORMAL PROGRESSION OF THE TAX IS RESTRICTED IN SUCH A WAY AS TO AFFORD AN ADVANTAGE TO TOP-OF-THE-RANGE CARS OF DOMESTIC MANUFACTURE, AND IN WHICH THE POWER-RATING FOR TAX PURPOSES IS CALCULATED IN A MANNER WHICH PLACES VEHICLES IMPORTED FROM OTHER MEMBER STATES AT A DISADVANTAGE HAS A DISCRIMINATORY OR PROTECTIVE EFFECT WITHIN THE MEANING OF ARTICLE 95 OF THE TREATY .

COSTS

THE COSTS INCURRED BY THE FRENCH GOVERNMENT, THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS,

THE COURT ( FIRST CHAMBER )

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DE GRANDE INSTANCE, SAINT-BRIEUC, BY JUDGMENT OF 9 DECEMBER 1986, AND BY THE TRIBUNAL DE GRANDE INSTANCE, NANCY, BY JUDGMENTS OF 5 MARCH 1987, 12 MARCH 1987 AND 7 MAY 1987, HEREBY RULES :

A SYSTEM OF ROAD TAX IN WHICH ONE TAX BAND COMPRISES MORE POWER RATINGS FOR TAX PURPOSES THAN THE OTHERS, WITH THE RESULT THAT THE NORMAL PROGRESSION OF THE TAX IS RESTRICTED IN SUCH A WAY AS TO AFFORD AN ADVANTAGE TO TOP-OF-THE-RANGE CARS OF DOMESTIC MANUFACTURE, AND IN WHICH THE POWER-RATING FOR TAX PURPOSES IS CALCULATED IN A MANNER WHICH PLACES VEHICLES IMPORTED FROM OTHER MEMBER STATES AT A DISADVANTAGE HAS A DISCRIMINATORY OR PROTECTIVE EFFECT WITHIN THE MEANING OF ARTICLE 95 OF THE TREATY .